Federal Evidence Review

In Munoz v. State Farm Lloyds, 522 F.3d 568 (5th Cir. 2008) the Fifth Circuit joined four other circuits that consider evidence that a grand jury did not file criminal charges to be unfairly prejudicial under FRE 403 in a related civil action.

In Munoz, the Fifth Circuit considered whether evidence of a decision not to bring criminal charges against a civil plaintiff was unfairly prejudicial when offered against the plaintiff in a subsequent civil action concerning the same conduct.

A fire, deliberately set, destroyed the home and contents of plaintiff Munoz and his wife. They filed a claim for coverage under their fire insurance policy. During a police investigation, Mr. Munoz was a suspect but no charges were filed by the grand jury. In the subsequent civil breach of insurance action, the defendant insurance company admitted evidence that Mr. Munoz had failed a polygraph exam. The plaintiffs then introduced “evidence that a grand jury did not indict Mr. Munoz for arson.” The trial court overruled the defendant’s objection that the non-indictment evidence was irrelevant and unfairly prejudicial, under FRE 401 and 403. The jury was advised that “a grand jury had considered a charge of arson and ‘Mr. Munoz was not charged as a criminal on this offense.’” The jury ruled for the plaintiffs and awarded more than $250,000.

The circuit reversed and agreed with the defendant insurance company that the evidence that no charges were filed was unfairly prejudicial and was reversible error. The following cases were noted in support:

• Rabon v. Great Sw. Fire Ins. Co., 818 F.2d 306, 309 (4th Cir. 1987) ("[A] federal trial court commits reversible error when it permits the plaintiff in a suit for fire insurance proceeds to present evidence of his nonprosecution or acquittal on related criminal arson charges. The reasons for this rule are easy to appreciate. First, such evidence goes directly to the principal issue before the jury and is highly prejudicial. Second, a prosecutor's decision not to prosecute and a jury's decision to acquit in a criminal trial are based on different criteria than apply in a civil proceeding. In particular, a prosecutor's decision to nolle prosse may take into account many factors irrelevant in a civil suit, such as the higher standard of proof required for criminal conviction. In any event, a prosecutor's opinion whether the insured started the fire is inadmissible since based on knowledge outside his personal experience.")
• Kelly’s Auto Parts, No. 1, Inc. v. Boughton, 809 F.2d 1247, 1253 (6th Cir. 1987) ("We find the reasoning in American Home and Galbraith convincing, and we adopt their rationale. Evidence of non-prosecution for arson is inadmissible, whether during a party's case-in-chief, during cross-examination, or during rebuttal. 'As a general rule, evidence that criminal charges were not brought is inadmissible in a civil case arising out of the same events as the criminal charges.'") (citation omitted)
• Am. Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 325 (3d Cir. 1985) ("The evidence of non-prosecution is of very limited probative value in showing that there was no arson because of the higher burden of persuasion in a criminal case. Further, prosecutorial discretion may take into account many other factors not relevant in a civil suit. At best, the evidence of non-prosecution is evidence of an opinion by the prosecutor. The opinion of a layperson, as the prosecutor was in this case, however, is inadmissible if it based on knowledge outside the individual's personal experience.") (citation omitted)
• Galbraith v. Hartford Fire Ins. Co., 464 F.2d 225, 227-28 (3d Cir. 1972) (Evidence of non-prosecution for arson was inadmissible in a civil action to disprove arson, determined under New Jersey law and not the Federal Rules of Evidence.)

As Munoz illustrates, in addition to being highly prejudicial, a decision on whether or not to bring criminal charges has the potential to be misunderstood, confuse or mislead the jury in a civil case. The criminal justice system has different standards and procedures than those used in civil cases.